Date:
20120830
Docket:
T-975-11
Citation:
2012 FC 1036
Ottawa, Ontario,
August 30, 2012
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
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LOUIS TAYPOTAT
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Applicant
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and
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SHELDON TAYPOTAT, MICHAEL BOB,
JANICE MCKAY, IRIS TAYPOTAT AND VERA WASACASE AS CHIEF AND COUNCIL
REPRESENTATIVES OF THE KAHKEWISTAHAW FIRST NATION
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review and an order of quo warranto
brought by Louis Taypotat (the “Applicant”) under sections 18(1) and 18.1 of
the Federal Courts Act, RSC 1985, c F-7. The Applicant is concerned
with events leading up to the election and the election for Chief and Council
of Kahkewistahaw First Nation (the “First Nation”) on May 13, 2011 (the
“Election”). The Respondents consist of the Chief and Councillors of the First
Nation since the Election.
[2]
For
the reasons that follow, I have come to the conclusion that this application
for judicial review ought to be dismissed. The Kahkewistahaw Election Act
(the Election Act or Act) was validly enacted, and the process
whereby the Election was held was fair and in compliance with the Election
Act.
1.
Facts
[3]
The
Applicant has served as Chief of the First Nation for a total of 27 years during
the periods of 1973-1989, 1992-1993 and 1997-2007. In the last election held
on May 15, 2009, the Applicant lost the election for Chief to Sheldon Taypotat,
his nephew and one of the Respondents, by four votes. This was the final
election held at the First Nation under the election rules of the Indian Act,
RSC 1985, c I-5 (the Indian Act).
[4]
The
Applicant attended a residential school until the age of 14, and was evaluated
at a grade 10 level in a test of the General Educational Development (GED). He
has been awarded an honourary diploma from the Saskatchewan Indian Institute of
Technology.
[5]
The
Applicant began the process of transitioning from elections under the Indian
Act to a custom election code when he was Chief of the First Nation. The
transition was made according to the “Conversion to Community Election System
Policy” (the “Policy”) from the Department of Indian Affairs and Northern
Development (the “Department”). The Applicant submits that the impetus was
driven by a desire to decrease the number of elections and provide stability in
the community by increasing the term of office from two to three years.
[6]
The
first draft of the proposed Election Act was prepared in 1998 and
included a provision that required “formal education at a post-secondary level
or equivalent education/experience” in order for a candidate to be eligible for
election to Chief or Council. Later drafts of the Election Act removed
the “experience” component. The relevant sections of the Election Act are
as follows:
Eligibility Requirements
9.03 A Candidate must:
…
(c) have attained a minimum education level of Grade
12 or an equivalent or higher level of education;
…
Candidate Declaration
10.01 In order to be accepted as a Candidate in an
Election, a person shall declare their intention to run as a Candidate no later
than 4:00 p.m., local time, on the tenth (10th) day prior to the
Nomination Meeting by providing to the Electoral officer all of the following
Declaration Documents:
…
(d) a copy of a certificate evidencing that the
person has attained a minimum education level of Grade 12 or an equivalent or
higher level of education;
…
Declaration
Document Review
10.04 The Electoral Officer shall, prior to the
Nomination Meeting, review each of the Candidate’s Declaration Documents to
ensure that the person is qualified to run as a Candidate in the Election. If
the person is qualified to run as a Candidate in the Election, the Electoral
Officer shall certify this fact on the Candidate’s Declaration of Candidate’s
Intent Form. The Electoral Officer shall advise each person that does not meet
the requirements to be a Candidate in an Election. The Decision of the
Electoral Officer that a person is not qualified to run in an Election shall be
final and binding and not subject to appeal.
[7]
The
Membership Committee, established pursuant to the Kahkewistahaw First Nation
Membership Code, was given the task of developing a draft Election Act
and advancing the referendum process to determine the desire of the members of
the First Nation in regard to the proposed Election Act. The
Respondents submit that the Membership Committee, charged with developing the Election
Act, met at least 25 times, prepared at least 17 drafts and consulted with
the band council and First Nation members throughout. The Applicant submits
that the Election Act was discussed at multiple meetings of the Elders
of Kahkewistahaw, was rejected by that group in 2007 and has never been
accepted since that time. The Respondents dispute that claim, and submit that
in any event there was no requirement that the Elders accept the Election
Act in order for it to be validly enacted.
[8]
The
Applicant argues that the Election Act did not incorporate the role of
Elders in determining an eligible candidate, as had previously been the custom
of the band for elections held under the Indian Act provisions.
[9]
Between
March 5 and March 18, 2008, the proposed Election Act was distributed to
the membership of the First Nation, and on July 21, 2008, the band council
approved the Notice of Ratification Vote for that Act. On September 6, 2008,
the first ratification vote was held but was unsuccessful because of low voter
turnout. Out of 984 eligible voters, only 164 ballots were cast, with 120
approving the Election Act, and 44 rejecting it.
[10]
On
March 26, 2009, a second ratification vote was held for the members of the
First Nation (the “Second Vote”). Of the 1007 eligible voters, 231 ballots
were cast, 190 of which were in favour of adopting the Election Act,
with 41 opposed and 1 ballot rejected. On May 15, 2009, the Applicant lost the
election for Chief.
[11]
The
Policy allows the adoption of a custom election code by a majority of the
electors of the First Nation or if “the community approves them in such other
manner as the First Nation and the department may agree upon” (Applicant’s
Record, vol. II, p. 453). The new Chief sought approval from the Department to
have a continuation vote on adopting the Election Act, and received
approval to do so. On January 22, 2010, a continuation vote (the “Continuation
Vote”) was held where voters who were eligible to vote in the Second Vote but
did not do so could cast ballots. Of the 776 eligible voters, 252 voted in
favour of adopting the Act, with 31 voting against and 7 votes were rejected,
spoiled or done improperly. When these results are added to the Second Vote,
the total number of eligible voters was 1007, of which 483 voted, 409 in favour
of adopting the Act and 72 opposing it. This participation rate was 22
votes shy of a majority of eligible voters.
[12]
The
Election Act was submitted to the Department on February 26, 2010 and on
February 18, 2011, the First Nation was removed from the election provisions of
the Indian Act in favour of the custom Election Act.
[13]
The
next election was set for May 13, 2011. On February 23, 2011, Corina Rider
(the “Elections Officer”) was hired by the First Nation to act as the returning
officer for the election. On April 2, 2011, the Elections Officer received a
list of potential candidates for the election, which included the Applicant,
and reviewed the documents to ensure they were in compliance with section 10.04
of the Election Act.
[14]
There
is no definition of the term “equivalent” found in section 9.03 of the Election
Act. The Elections Officer discussed Louis Taypotat’s honourary diploma
with the President of the Saskatchewan Indian Institute of Technology and made
note that the honourary diploma was awarded to recognize what Louis Taypotat
had done for the community. She also received a written legal opinion on the
issue on April 8, 2011.
[15]
On
April 12, 2011, the Elections Officer notified the Applicant that he was not
certified as a qualified candidate because he did not comply with paragraph
10.01(d) of the Election Act. The Elections Officer did not provide the
Applicant with an opportunity to be heard on his eligibility before the
decision was made. The Elections Officer was notified by counsel for the
Applicant that if he was found to be ineligible, he would pursue legal action.
[16]
On
April 13, 2011, a nomination meeting was conducted by the Elections Officer.
At the meeting, the Applicant was nominated to run for Chief in the election,
but the Elections Officer rejected the nomination based on his ineligibility.
As Sheldon Taypotat was the only remaining candidate who possessed the
qualifications under the Election Act, there was no election held for
the position of Chief and he was elected by acclamation to that
position.
[17]
A
petition was initiated which stated that the educational requirement in the Election
Act did not reflect the custom of the band in relation to elections. The
Applicant states that the petition began prior to the elections, while the
Respondents note that it is not dated. The petition was signed by 340 members
of the First Nation, although not all who signed this petition were eligible
voters at the time of the Second Vote or Continuation Vote.
[18]
The
Applicant filed this application for judicial review on June 10, 2011 seeking
the following remedies: (1) a declaration that paragraphs 9.03(c) and 10.03(d)
of the Election Act are invalid; (2) a declaration in the nature of quo
warranto to the effect that the Respondents have no right to hold office;
(3) a declaration that a new election be held in accordance with the custom of
the First Nation without delay; and (4) costs.
2. Issues
[19]
This
application for judicial review raises four issues:
a)
Did the Applicant exhaust alternative avenues before bringing this application?
b)
Was there a broad consensus among the First Nation in favour of the Election
Act?
c)
Was the Applicant treated fairly?
d)
Are the impugned provisions discriminatory and contrary to section 15 of the Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]?
3. Analysis
a)
Did the Applicant exhaust alternative avenues before bringing this application?
[20]
The
Respondents argue that the Applicant did not exhaust the appeal procedures
available to him before coming to the Federal Court. Sections 18 and 23 of the
Election Act provide a mechanism to appeal an election on the basis that
there was a violation of that Act, and paragraph 25.01(c) allows amendment of
the Act by a petition signed by 100 electors. The Respondents argue that if
this review is heard, the Court will step beyond its supervisory jurisdiction
over the system.
[21]
It
is well established that courts will not exercise their discretion on actions
or applications where the aggrieved party has an adequate alternative remedy,
and has either failed to utilize such a remedy, or failed to exhaust the same.
The leading case on the notion of what constitutes an “adequate alternative
remedy” is the decision of the Supreme Court in Harelkin v University of Regina, [1979] 2 S.C.R. 561. In an often quoted passage, the Supreme Court
stated the test to be as follows (at p 588):
In order to evaluate whether appellant's right of
appeal to the senate committee constituted an adequate alternative remedy and
even a better remedy than a recourse to the courts by way of prerogative writs,
several factors should have been taken into consideration among which the procedure
on the appeal, the composition of the senate committee, its powers and the
manner in which they were probably to be exercised by a body which was not a
professional court of appeal and was not bound to act exactly as one nor likely
to do so. Other relevant factors include the burden of a previous finding,
expeditiousness and costs.
[22]
In
the case at bar, sections 18 and 23 of the Election Act clearly do not
provide an adequate alternative remedy. The grounds for appeal are set out at
section 18.02 of the Election Act:
18.02 Grounds for an Appeal are restricted to the
following:
(a) the person declared elected was not qualified to
be a Candidate;
(b) there was a violation of this Act in the
procedures that where followed that may have affected the results of the
Election; or
(c) there was Corrupt Practice in relation to the
Election.
[23]
The
Applicant is challenging the process that led to the adoption of the Election
Act and, therefore, its validity, as well as the interpretation of that Act
(and in particular paragraph 9.03(c)) by the Elections Officer. These
arguments far outreach the grounds for appeal found in section 18.02 of
the Act, as the Applicant is not claiming that the Act was violated.
Accordingly, the appeal procedure provided for in the Election Act would
be of no avail to the Applicant, and cannot be considered an adequate
alternative remedy.
b)
Was there a broad consensus among the First Nation in favour of the Election
Act?
[24]
There
is no dispute between the parties as to the applicable legal principles, to
determine whether the Election Act was validly adopted. Indeed, counsel
for both the Applicant and the Respondents rely on the same jurisprudence in
this respect. I shall therefore only briefly summarize these principles.
[25]
The
Indian Act itself does not set out guidelines as to how a band custom is
to be identified. The jurisprudence has filled in the gap, and it is now well
established that, in order to establish the custom of the band in relation to
elections for Chief and Council, it is necessary to show that the alleged
custom is supported by a “broad consensus” of the members of the First Nation.
This principle was established in Bigstone v Big Eagle, [1992] FCJ no
16, 52 FTR 109 (CA), where Justice Strayer stated (at p. 8):
Unless otherwise defined in respect of a particular
band, “custom” must I think include practices for the choice of a council which
are generally acceptable to members of the band, upon which there is a broad
consensus. … The real question as to the validity of the new constitution then
seems to be one of political, not legal, legitimacy: is the constitution based
on a majority consensus of those who, on the existing evidence, appear to be
members of the Band?
[26]
This
case has been consistently followed by the Court. After having carefully
reviewed the case law on this topic, Justice Martineau expanded on the test in
the following words:
For a rule to become custom, the practice pertaining
to a particular issue or situation contemplated by that rule must be firmly
established, generalized and followed consistently and conscientiously by a
majority of the community, thus evidencing a "broad consensus" as to
its applicability. This would exclude sporadic behaviours which may tentatively
arise to remedy certain exceptional difficulties of implementation at a
particular moment in time as well as other practices which are clearly understood
within the community as being followed on a trial basis. If present, such a
"broad consensus" will evidence the will of the community at a given
time not to consider the adopted electoral code as having an exhaustive and
exclusive character. Its effect will be to exclude from the equation an
insignificant number of band members who persistently objected to the adoption
of a particular rule governing band elections as a customary one.
Mohawk of Kanesatake v Mohawk of Kanesatake
(Council),
2003 FCT 115, [2003] 4 FC 1133, at para 36.
[27]
What
constitutes a broad consensus has been described by the courts in various
ways. A broad consensus may in appropriate circumstances be discerned from the
cumulative effect of a number of events, or it may result from one event such
as the adoption of a particular code: Nekaneet First Nation v Oakes,
2009 FC 134, [2009] FCJ no 183, at para 39; McLeod Lake Indian Band v
Chingee, [1998] FCJ no 1185, 153 FTR 257 (FCTD). It is also recognized
that the content of the custom of a band may vary from time to time, and from
one band to another, according to the will of the band members: see McLeod
Lake Indian Band v Chingee, [1998] FCJ no 1185, 153 FTR 257 (FCTD) at para
19; Six Nations Traditional Hereditary Chiefs v Canada (Minister of Indian
and Northern Affairs), [1991] FCJ no 141, 43 FTR 132 (FCTD); Mohawk of
Kanesatake, supra, at para 25.
[28]
The
existence of a band custom must be established by those who assert it. In
other words, the onus of proof that the Election Act represents the
custom of the band in that it is supported by a broad consensus of the
membership, rests on the Respondents: McArthur v Saskatchewan (Registrar,
Department of Indian Affairs and Northern Development), [1992] SJ no 189,
91 DLR (4th) 666 (Sask QB); Mohawk of Kanesatake, supra, at para
21.
[29]
A
number of cases indicate that a majority of First Nation members need not vote
in favour of adopting a band custom election code, and that there is no legal
requirement that the majority consensus be ascertained in any particular way.
Conversely, the fact that a change was supported by a simple majority vote of
electors is not necessarily sufficient to change an established custom. As
Justice Reed stated in McLeod Lake Indian Band, supra, at
para 18:
The question that remains is whether “broad general
consensus” equates to a “majority decision of the Band members attending a
general meeting of the Band convened with notice”. In my view, it may do so,
or it may not, depending upon a number of factors. If for example, the general
meeting was held in a location or at a time when it was difficult for a number
of members to attend, and there was no provision for proxy voting, it may not
meet the broad consensus test. If the notice was not adequate in not providing
sufficient detail of what was proposed, or was not given sufficiently in
advance of the meeting to allow people a realistic opportunity to attend then
it would not be.
[30]
In
a nutshell, the existence of a band custom and whether or not it has been
changed with the substantial agreement of the band members will always depend
on the circumstances. A few examples taken from the case law will suffice to
illustrate that proposition.
[31]
In
Lac des Mille Lacs First Nation v Champan, [1998] FCJ no 752, 149 FTR
227, the Court held that an election code adopted as a result of a vote in
which 86 of 300 eligible voters voted, and only 73 voted in favour, constituted
a broad consensus. In the unique circumstances of that First Nation, the
location of only about 130 voters was known and typically only 45 voters
participated in the electoral process. Against this history of general
non-participation, the fact that 86 voters voted was actually significant.
[32]
In
Awashish v Opitciwan Atikamekw Band Council, 2007 FC 765, [2007] FCJ no
1021, a new election code was adopted at a public meeting of band members after
extensive consultations. The new code was used shortly thereafter in the
band’s elections without dispute. It was only after the elections were over
that some members of the band made complaints, which ultimately led to the
suspension of the code and a new election using the previous custom election
procedures. The respondents contended that the new election code was never
valid because it did not reflect a broad consensus of the band, having not been
supported by a majority vote of the electors at a referendum. The Court held
that it was not necessary for the Council to proceed by referendum in order to
ensure that it had the support of a majority of the public before adopting the
Electoral Code (although it may have been preferable), since the Code was
adopted at a public assembly after extensive consultation, and the community
had acquiesced to its use in the 2005 elections.
[33]
Finally,
the decision of this Court (affirmed by the Court of Appeal at [2010] FCA 169)
in Nekaneet First Nation, supra, is also instructive. The
election of the Applicants as the band council of Nekaneet was based on a band
custom passed at the Referendum Vote of the eligible voters of Nekaneet. The
Referendum Vote approving the Nekaneet Constitution and the Nekaneet
Governance Act which together formed the Referendum Band Custom, was
intended to replace any previous band customs of Nekaneet, and it could only be
amended or repealed by a subsequent referendum held in accordance with the
Nekaneet Constitution. The election of the respondents as the band council of
Nekaneet on the same voting day was based on the Second Band Custom passed by a
show of hands at a Nekaneet band meeting called for such purpose.
[34]
That
band had approximately 418 members, of which 267 were eligible voters at the
material time. Of the 267 Nekaneet eligible voters, 136 ballots were cast
under the Referendum Vote. Of the 136 ballots cast, 113 voted in favour of the
Nekaneet Constitution and 21 against, and 114 also voted in favour of
the Nekaneet Governance Act, and 21 voted against.
[35]
Recognizing
that there was no requirement that a ratification process of a band custom
election system occur or be initiated in any specific way, the Court noted that
slightly more than 50% of the band members participated in the ratification
vote and that 83% of the eligible voters who participated, voted in favour of
the band custom election system. Given that the respondents and their supporters
refused to participate in the referendum process, the Court was of the view
that the turnout was remarkably high and that the result shows a clear
endorsement of the new regime as a custom of the Nekaneet First Nation (at para
61).
[36]
It
is against the backdrop of these legal principles that I must now determine
whether the Respondents have met all of the criteria to establish a broad
consensus of the members of the First Nation in favour of the Election Act.
[37]
The
Applicant submitted that, given that it was necessary to resort to holding a
two-part vote over a protracted period of time in the face of an initial
failure, broad consensus on adopting the Election Act was not
demonstrated. The Applicant further argued that many members of the First
Nation boycotted the voting as a result of the fact that those who were
proposing the Election Act, were not respecting the complaints made
about the educational requirement. This non-participation, it is contended,
was a sign of disagreement as the opposition was not passive.
[38]
Having
carefully reviewed the evidence on the record, I cannot accede to those
arguments. The affidavits and exhibits filed by the Respondents indicate that
an extensive process was undertaken to prepare the Election Act, consult
with First Nation members, explain the Election Act, seek input from
First Nation members and implement their wishes regarding the education
provisions of the Election Act. The First Nation was involved in the
process of developing and ratifying the Election Act on an ongoing basis
for 13 years, with much of it under the leadership of Louis Taypotat. An
extensive information and ratification process was undertaken, and there was
plenty of opportunity for First Nation members to ask questions, receive answers,
and understand the Election Act. This process was conducted publicly
and openly, and the ratification votes were conducted by secret ballot.
[39]
The
First Nation held referendum votes, even though they are not technically
required. In the Second and Continuation Vote, 48% of the eligible voters
participated, and the Election Act was adopted by a high majority of
those who voted (84%). Slightly less than a majority of First Nation members
voted, and only 72 First Nation members voted against the Election Act
in the Second and Continuation Vote. With such a high percentage of voters in
favour of the Election Act, even an additional 22 votes (the missing
number for a participation rate of 50% + 1) against the Election Act would
not have affected the outcome of the Second Vote and Continuation Vote.
Moreover, the Department itself recognized the need to be flexible in
accommodating the concept of “broad consensus”, since the Department’s Policy
stipulates that an election code will be considered approved by the community
if a majority of electors vote by secret ballot to approve it, or if
“the community approves them in such other manner as the First Nation and the
department may agree upon”. In the present case, an official of the Department
encouraged the First Nation to request the Minister to issue an order removing
the First Nation from the Indian Act election provisions based on the
combined results of the Second and Continuation Vote. These factors weigh
heavily in favour of finding that there was a broad consensus among members of
the First Nation to the Election Act and its education provisions.
[40]
The
Applicant takes issue with the fact that the First Nation chose to conduct the
Second Vote in two parts at the suggestion of the Department, being the Second
Vote and Continuation Vote. However, the courts have recognized that on some
occasions, particularly where a First Nation seeks to establish a contemporary
“custom” after a period of years, innovative steps may be required to determine
whether or not a broad consensus exists. The integrity of the referendum
process was maintained, as the First Nation ensured that only those members who
were entitled to vote in the Second Vote, but did not so vote, were allowed to
vote in the Continuation Vote. This is clearly not a basis upon which to
declare the Election Act invalid.
[41]
As
for the suggestion that the low turnout rate was evidence of dissent rather
than acquiescence, the Applicant has not provided any evidence to that effect.
It would appear, instead, that the participation levels of the Second and
Continuation Vote simply show the apathy of the voters. This is borne out by
the historical rates of voter participation, which indicate that the turnout
for the votes on the Election Act were actually above normal. In 2001,
2007 and 2009, respectively 44%, 40% and 43% of the eligible voters of the
First Nation voted in the election for the position of Chief. While the total
number of eligible voters in 1999, 2003 and 2005 are not available, the number
of First Nation members who did vote for the position of Chief in those years
indicate a relatively stable level of member participation in First Nation
elections, as is the case for many municipal elections throughout the country.
[42]
The
Applicant also submitted that a number of violations to the Community
Ratification Voting Guidelines (Applicant’s Record, vol. I, p. 171) occurred,
particularly with respect to the January 22, 2010 Continuation Vote. These
irregularities are minor in nature and have not been shown to have affected the
results of either the Second or Continuation Vote. As the Court indicated in Nekaneet
First Nation, supra, it is not always necessary to strictly construe
the provisions of an election code, and a vote will generally not be determined
invalid as a result of irregularities, unless such irregularities would have
materially affected the results of the vote. There is no evidence before me
that the alleged violations reach that threshold.
[43]
Finally,
the Applicant suggests that the petition signed by 340 First Nation members
discloses a lack of consensus for the educational requirements of the Election
Act. As was the case in Nekaneet, supra, the Applicant has
provided no evidence that would allow this Court to gauge the significance or
legitimacy of the petition as an indicator of a consensus. Moreover,
there seems to be only 72 members who can credibly be considered to have
opposed the Election Act in the petition. According to the affidavit
sworn by Vera Wasacase, Councillor for the First Nation and Chairperson for the
Membership Committee, it would appear that of the 340 persons who signed the
petition, 12 of them were under the age of 18 years as of May 13, 2011 (the
date of the Election), 28 others were either under the age of 18 years at the
time of the Second Vote and the Continuation Vote or were not members of the
First Nation, and 105 of them did not even bother to vote in either the Second
Vote or the Continuation Vote. This leaves 195 First Nation members on the petition
who did vote in the Second Vote or the Continuation Vote and who were of the
age of 18 at the time of the Second Vote, the Continuation Vote and the
Election. Since 72 First Nation members in total voted “no” in the Second Vote
and Continuation Vote, this means that 123 First Nation members must have voted
“yes’ in the Second Vote or in the Continuation Vote, and later signed the
petition. In these circumstances, it is difficult to give much weight to the
petition.
[44]
In
light of the foregoing, I am of the view that the Election Act was
adopted by a broad consensus of the members of the First Nation.
c) Was the
Applicant treated fairly?
[45]
The
Applicant challenges the decision of the Elections Officer to disqualify him on
the basis of paragraph 9.03(c), on the ground that she did not examine the
basis upon which the honourary certificates are granted and gave insufficient
consideration to the fact that they were meant to recognize accomplishment. As
the certificate was granted to the Applicant by an educational authority to
worthy individuals who incorporate qualities they wish to foster in their
students, counsel argued that it is the equivalent of formal education.
Moreover, the Applicant argued that it was unfair not to be given any
opportunity to be heard by the Elections Officer in relation to the eligibility
issue.
[46]
The
appropriate standard of review on the substantive issue raised by the Applicant
is that of reasonableness. The Elections Officer derived her authority from
the Election Act, and was interpreting her “home statute” when deciding
whether the honourary certificate is equivalent to an education level of Grade
12. In Alberta (Information and Privacy Commissioner) v Alberta Teachers’
Association, 2011 SCC 61, [2011] 3 S.C.R. 654, the majority stated that the
appropriate standard of review will be correctness only where the nature of the
question of statutory interpretation is “not only…of central importance to the
legal system but also outside the adjudicator’s specialized area of expertise” (at
para 46). The majority summarized recent case law at paragraph 30 and noted
that the appropriate standard will ordinarily be reasonableness where the
decision-makers are interpreting their home statute. The inclusion of a strong
privative clause in the Election Act is an additional strong indicator
that deference is owed to the decision-maker.
[47]
As
for the alleged breach of procedural fairness raised by Mr. Taypotat, it is
trite law that the applicable standard of review is that of correctness: (Canadian
Union of Public Employees (CUPE) v Ontario (Minister of Labour), 2003 SCC
29, [2003] 1 S.C.R. 539 at paras 100-104; Sketchley v Canada (Attorney
General), 2005 FCA 404, [2005]
3 FCR 392
at para 111). If there is such a breach, this Court will therefore intervene.
[48]
I
agree with the Respondents that the plain meaning of the education provisions
in the Election Act, and in particular the use of the word
“equivalency”, indicate that the intention of the provisions is to ensure that
a candidate has either a Grade 12 education, a level of education that is of
the same level as a Grade 12 education, or a level of education that is higher
than a Grade 12 education. Mr. Taypotat clearly does not have a diploma
showing that he has a Grade 12 education, although he managed to obtain a Grade
10 level in a GED test. As for the honourary diploma that he presented to the
Elections Officer, it appears that it was based on Mr. Taypotat’s commitment to
his community and the experience that he had in business and government services
for his community. While this is most certainly commendable, it is clearly not
the equivalent of formal education. That such a diploma is not in keeping with
the spirit of the Election Act is further evidenced by the legislative
history of that Act. As previously mentioned, the First Nation initially
included “experience” as an alternative to formal educational requirements, but
subsequently removed “experience” as an eligibility criteria for the position
of Chief of the First Nation. This change suggests that “experience” alone, or
any recognition thereof, does not meet the requirements of the education
provisions.
[49]
While
the Court acknowledges Mr. Taypotat’s predicament and understands that
obtaining a Grade 12 education was obviously more difficult for someone who
attended residential school, this does not make the Elections Officer’s
decision unreasonable. She could most certainly come to the decision that Mr.
Taypotat did not qualify as a candidate, based on her own interpretation of
paragraphs 9.03(c) and 10.01(d) of the Election Act and on the legal
opinion that was provided to her.
[50]
As
for the Applicant’s argument that the Elections Officer had a duty to provide
him with an opportunity to be heard with respect to his eligibility to stand
for election, it is confusingly intertwined with his standard of review
analysis and is far from compelling. His submission appears to be,
essentially, that he was owed the opportunity to make representations because
of the dramatic consequences of the decision made by the Elections Officer.
[51]
In
Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR
817, the Supreme Court determined that an oral hearing is not always necessary
to ensure a fair hearing and consideration of the issues involved. The Court
added that the duty of fairness is flexible and variable and will depend on the
context of the particular statute and the rights affected. The importance of
the decision to the individual affected is no doubt a factor to be considered.
However, the other factors identified by the Court do not favour the
Applicant. First, the process provided for and the nature of the
decision-making body (i.e. the Elections Officer) does not resemble judicial
decision-making. Second, there is no appeal procedure although judicial review
is always available. Third, the Applicant could not have a legitimate
expectation that he would be entitled to a hearing. Fourth, the Election
Act does not prescribe any specific procedure and leaves it to the
Elections Officer, who has expertise in that matter. In light of these
factors, I fail to see how the duty to act fairly could be interpreted as
requiring an oral hearing, before the Elections Officer can determine the
eligibility of a candidate.
[52]
Moreover,
the Applicant was not prevented from making his case and had two opportunities
to submit all documentation relevant to the eligibility criteria to the
Elections Officer. He could have provided such information with the rest of
the Declaration Documents that he filed in accordance with section 10.01 of the
Election Act, or he could have made additional submissions with respect
to the issue in the April 12, 2011 letter from his lawyer. The Applicant or
his lawyer must have known that section 10.04 of the Election Act
provided no appeal process from a decision of the Elections Officer.
Accordingly, the Applicant should have provided the Elections Officer with all
relevant information at the appropriate time when he had the opportunity to do
so.
[53]
In
light of the foregoing, I am of the view that the Elections Officer did not err
when she ruled that the Applicant was ineligible and could not run for the
position of Chief. I also find that there has been no breach of the duty of
fairness in coming to that decision.
d)
Are the impugned provisions discriminatory and contrary to section 15 of the Charter?
[54]
Counsel
for the Applicant alleges that paragraphs 9.03(c) and 10.01(d) of the Election
Act are discriminatory and contrary to section 15 of the Charter
because they impose a differential treatment based on one or more enumerated
analogous grounds. While the grounds on which an electoral officer may refuse
to certify a candidate for election are not explicitly based on enumerated
grounds, it is alleged that educational attainment is analogous to race and
age. Indeed, requiring a Grade 12 education would perpetuate a disadvantage
and stereotype, because education in aboriginal communities is less formalistic
and would disproportionately affect older band members and residential school
survivors.
[55]
It
is trite law that not every distinction or differentiation in treatment will
infringe the equality guarantee of section 15 of the Charter. As the
Supreme Court stated in Law Society British Columbia v Andrews, [1989] 1
SCR 143, it is only those distinctions that are discriminatory in their intent
or their effect that will run afoul of that constitutional guarantee. This was
expressed most clearly by Justice McIntyre in the following excerpt (at para
37):
I would say then that discrimination may be
described as a distinction, whether intentional or not but based on grounds
relating to personal characteristics of the individual or group, which has the
effect of imposing burdens, obligations, or disadvantages on such individual or
group not imposed upon others, or which withholds or limit access to
opportunities, benefits, and advantages available to other members of society.
Distinctions based on personal characteristics attributed to an individual
solely on the basis of association with a group will rarely escape the charge
of discrimination, while those based on an individual’s merits and capacities
will rarely be so classed.
[56]
The
various grounds of discrimination expressly listed in subsection 15(1) reflect
the most common and most obvious bases of discrimination. However, these are
not the only grounds upon which discrimination may be found. In her majority
reasons elaborating on this issue, Justice Wilson explained (at p 152) that a
ground may qualify as analogous to those listed in subsection 15(1) if persons
characterized by the trait in question are, among other things, “lacking in
political power”, “vulnerable to having their interests overlooked and their
rights to equal concern and respect violated”, and “vulnerable to becoming a
disadvantaged group” on the basis of that trait.
[57]
In
Law v Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497,
[1999] SCJ no 12, the Supreme Court added that four contextual factors can be
looked at to determine whether legislation is discriminatory. One of those
factors, probably the most compelling according to the Court, is pre-existing
disadvantage, vulnerability, stereotyping, or prejudice experienced by the
individual or group. As the Court stated (at para 64):
One consideration which the Court has frequently
referred to with respect to the issue of pre-existing disadvantage is the role
of stereotypes. A stereotype may be described as a misconception whereby a
person or, more often, a group is unfairly portrayed as possessing undesirable
traits, or traits which the group, or at least some of its members, do not
possess. In my view, probably the most prevalent reason that a given
legislative provision may be found to infringe s. 15(1) is that it reflects and
reinforces existing inaccurate understandings of the merits, capabilities and
worth of a particular person or group within Canadian society, resulting in
further stigmatization of that person or the members of the group or otherwise
in their unfair treatment. This view accords with the emphasis placed by this
Court ever since Andrews, supra, upon the role of s. 15(1) in overcoming
prejudicial stereotypes in society.
[58]
With
these considerations in mind, can it be said that the level of education is
analogous to one of the enumerated grounds in subsection 15(1)? The Applicant
has submitted no evidence to that effect. On the face of it, educational level
is not beyond an individual’s control. In fact, Justice Wilson all but
eliminated level of education as an analogous ground when she stated in Andrews,
supra, at para 49:
A rule which bars an entire class of persons from
certain forms of employment, solely on the grounds of a lack of citizenship
status and without consideration of educational and professional qualifications
or the other attributes or merits of individuals in the group, would, in my
view, infringe s. 15 equality rights.
[59]
Accordingly,
given that the education provisions clearly distinguish between First Nation
members on the basis of merit and capacities, they are unlikely to be
indicators of discrimination, since they deal with personal attributes rather
than characteristics based on association with a group. Educational upgrading
opportunities are available, enabling the Applicant to change the characteristic
which causes him to be ineligible to run for the position of Chief. The
Applicant has received a GED equivalent to a grade 10 education, and no
submissions were made as to why he could not further upgrade his education.
While it is obviously more difficult as one grows older to obtain a higher
educational level, it does not rise to the level of the immutable
characteristics such as those listed in subsection 15(1) of the Charter.
[60]
Once
again, there is no mention of race or age related criteria in paragraphs
9.03(c) and 10.01(d), and those sections do not discriminate, either directly
or indirectly, on the basis of these characteristics. In the absence of any
evidence to the contrary, it cannot be said that the educational level
requirement is a proxy for these characteristics or that it perpetuates a
stereotype or a disadvantage of a particular group of persons.
[61]
As
a result, there is no need to consider whether the impugned provisions of the Election
Act are justified under section 1 of the Charter. The
education provisions of the Election Act do not discriminate on the
basis of race or age, and the level of education is not an analogous ground to
either race or age. There is, therefore, no infringement of subsection 15(1)
of the Charter.
4. Conclusion
[62]
For
all of the foregoing reasons, this application for judicial review must be
dismissed, with costs payable to the Respondents.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
dismissed, with costs payable to the Respondents.
"Yves de
Montigny"
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